In the May 2010 Ask an Expert column, lawyer Lisa Bolton fields a question on accident investigation reports
Question: Following a workplace accident must an organization’s internal accident investigation report be disclosed to the Ontario Ministry of Labour?
Answer: The short answer is no. However, to protect the investigation report from disclosure, an organization must first have taken proactive and deliberate steps to protect the investigation report through the application of “privilege.”
Following a workplace accident, many prudent organizations will conduct an internal accident investigation to determine the reasons for the accident and, if appropriate, remedial steps to ensure a similar accident does not occur in future.
Under Ontario’s Occupational Health and Safety Act (OHSA), for example, a Ministry of Labour inspector has broad powers to investigate an accident, including requiring disclosure of a range of documentation and other information. This often includes a request for disclosure of internal investigation notes or reports if any have been prepared.
An internal accident investigation report can serve a vital role in the defence of charges laid against the organization and managers under the OHSA or other legislation including the Criminal Code of Canada. A well prepared internal accident investigation report can contain information that might not otherwise be uncovered by a Ministry of Labour inspector, including facts related to prior incidents, related incidents or regarding the accident itself, names of witnesses, witness statements, admissions, photographs and expert reports.
However, the usefulness of an internal report can be significantly undermined if it falls into the hands of a Crown prosecutor. Determining which documents are accessible to the Ministry of Labour and how to protect those documents is therefore critical to a successful defence.
There are a number of proactive steps that must be taken, and issues that should be considered in order to protect an investigation accident report. In particular, there are substantive and procedural steps an organization can take to place itself in the best position to argue that an internal accident investigation report is privileged and therefore beyond the reach of the Ministry of Labour or Crown prosecutor.
The following is a summary of the key steps an organization should take to create and protect the privileged status of an internal accident investigation report:
• Consult with experienced legal counsel as early as possible to obtain specific advice in relation to the circumstances at hand and to best protect the organization’s interests.
• On the written advice of legal counsel, begin to collect the information necessary to prepare an internal accident investigation report that can be used to receive legal advice and defend against charges anticipated under the OHSA or any other act.
• Prepare a privileged, internal report separate and independent of any other report required by law (such as a report required to be prepared by a Joint Health and Safety Committee under subsection 9(31) of the OHSA).
• Inform every member of the internal investigation team that the investigation is being carried out and that all materials are being produced for the purposes of receiving legal advice and in contemplation of litigation.
• Arrange for legal counsel to explain to the investigation team the rationale for and importance of privilege, and how privilege applies to the investigation report.
• Inform anyone interviewed during the investigation that their interview is being carried out in contemplation of litigation and the organization intends it to remain confidential.
• Ensure very limited circulation of the report under the direction of counsel, and that those in receipt of the report are directed to return or destroy their copy.
• Keep all investigation files separate and secure from other workplace files.
• Consult with and receive advice from legal counsel before disclosure to any party, including a Ministry of Labour inspector. Disclosure should be limited and only as necessary.
• Clearly mark as privileged and confidential and prepared in contemplation of litigation, any report or document that has been prepared in the course of the investigation.
Lisa Bolton practices law with the management-side employment and labour law firm, Sherrard Kuzz LLP in Toronto. She can be reached at (416) 603-0700 (Main), (416) 420-0738 (24 Hours) or visit www.sherrardkuzz.com.
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